This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Monday, October 22, 2007

Former Attorney General Dick Thornburgh will testify before a subcommittee of the House Judiciary Committee on Tuesday about why he feels the prosecution of former Allegheny County Coroner Dr. Cyril Wecht is politically motivated.

Mr. Thornburgh, who is on Dr. Wecht's defense team, will be given an allotment of time to make a statement, and then it is likely the subcommittee, which is investigating the firings of nine U.S. attorneys across the country last year, will ask questions.

Twenty years ago Dick Thornburgh was the attorney general under Pres. George H.W. Bush.

Others scheduled to testify Tuesday include former Alabama U.S. Attorney Doug Jones, who was an early defense attorney in the bid-rigging case against former Gov. Don Siegelman, as well as Donald C. Shields, a professor emeritus at the University of Missouri, who co-wrote a study looking at the number of Democratic vs. Republican officeholders who have been investigated by the Department of Justice during the Bush administration.

McKay said he was summoned to Washington, D.C., in June and questioned for eight hours about possible reasons for his firing by investigators with the Office of Inspector General, who will forward their final report to Congress.

"My best guess is it will be released sometime next month," and likely will include recommendations for criminal prosecutions of Gonzales and maybe others, McKay said.

Gonzales "lied about" reasons for the firings when questioned under oath in July by the Senate Judiciary Committee and now has hired a lawyer and is refusing to answer questions from the Inspector General, McKay said.

Thursday, October 18, 2007

Why do we have evidence rules anyway? A common justification is that it’s to protect the process from cognitive failings of jurors, who might, say, attach too much weight to hearsay testimony or be prejudiced by a picture that was relevant but gory. A provocative law review article examines the related belief (and practice by many judges) that evidence law is less important in bench trials because judges can give the evidence the weight it deserves. Frederick Schauer, On the Supposed Jury Dependence of Evidence Law, 155 U. Pa. L. Rev. 165 (2006).

Prof. Schauer says that many judges relax the evidence rules in bench trials. But is this merited? Why should we believe that judges are any less prone to cognitive failings than the rest of the population?

Moreover, the existence of evidence rules may improve the fact-finding process. If parties know they will not be allowed to present hearsay evidence, then they will work harder to find more direct (and hence more reliable) evidence. If parties know they can’t rely on past acts evidence to show that a defendant acted in a certain way on a particular occasion, they will work harder to find evidence of this particular act.

There has been much discussion of the decline in civil jury trials in the U.S. I was interested in Prof. Schauer’s discussion of other countries: I hadn’t realized that jury trials are very, very rare in the UK and other common-law jurisdictions now.

Jennifer L. Mnookin, Bifurcation and the Law of Evidence, 155 PENNumbra 134 (2006). Maybe the reason judges seem cavalier about applying the rules of evidence to themselves it that, once they’ve had to decide on admissibility, they know about the evidence and they understand their own cognitive limitations: they can’t un-know it. If one judge made evidence rulings and another made factual findings, this could be avoided.

(PENNumbra is the online companion to the University of Pennsylvania Law Review.)

Tuesday, October 16, 2007

The University of Washington's Moot Court Room will be a real courtroom on Friday when King County Superior Court Judge Mary Yu convenes court to hear two summary judgment motions. Students are invited to observe the proceedings, bearing in mind that rules of courtroom decorum are stricter than those in the classroom (e.g., no snacking, no hats, no disruptions). Judge Yu to Hear Motions at UW Law School, News Release, Oct. 12, 2007.

A summary of the cases that Judge Yu will hear and a message about courtroom decorum are here.

This is a great opportunity. We've had appellate courts visit before, but this is our first visit by a trial court. It's easier for appellate courts to go on road, since trial courts have witnesses, jurors, interpreters, guards, and others to transport. Few trial courts travel even for motions practice, and I'm happy that Judge Yu does. (She takes her courtroom to Seattle U regularly.)

Judge Yu is President of the Judge Dwyer American Inn of Court, Seattle Chapter; chair of the Superior Court Judge’s Association Civil Law and Procedure Committee; and Assistant Dean for the 2008 Judicial College. She was received many awards -- notably the 2005 "Judge of the Year" award from the American Board of Trial Advocates, Washington Chapter (ABOTA). For more about Judge Yu, see Beth Barrett Bloom, Profile: Judge Mary Yu -- Opening Doors and Passing on the Gifts of Mentorship, Bar Bull., Jan. 2006.

The city of Puyallup disputes the allegations in one of the ads in support of R-67, the provision that would authorize damages in actions against insurance companies for bad faith. Ad's assertions questioned, Olympian, Oct. 8, 2007.

As the election draws near, I thought I'd post a little information related to R-67. It is a referendum on a law adopted by the legislature and signed by the governor: 2007 Laws, Ch. 498. You can read the bill reports here.

The question is whether we voters want to accept or undo that law. The controversial part is about is section 3, which says that an insured person can sue the insurance company for denying a claim in bad faith. The suit is for actual damages and "reasonable attorneys' fees and litigation costs." If the superior court finds bad faith it may "increase the total award of damages to an amount not to exceed three times the actual damages."

The catchphrase in the opposition's ads is "frivolous lawsuits." But I note that the insurance company doesn't have to pay damages and costs unless the plaintiff shows bad faith. Even then, the treble damages are discretionary. If a lawsuit is truly frivolous (not just unpleasant for the insurance company), then plaintiff's counsel would be vulnerable to sanctions under CR 11. (I wonder how often Rule 11 sanctions are imposed in Washington...)

Some scholarship on the difference that bad faith legislation might make:

Mark J. Browne, Ellen S. Pryor, & Bob Puelz, The Effect of Bad-Faith Laws on First-Party Insurance Claims Decisions, 33 J. Legal Studies 358 (2004). The authors did some serious number-crunching (using data from 1992) to compare claim recoveries in states with and without a bad-faith tort action (or with one but with a damage cap). Washington was among the states without. Id. at 362 n.15. Here's their conclusion:

5. OBSERVATIONS AND IMPLICATIONS

Our study supports several assumptions about how the law of bad faith affects insurers’ claims settlement practices. Higher overall settlement amounts are paid in states with a bad-faith remedy. Moreover, . . . the higher overall settlements are a result of higher payments for both economic and noneconomic damages.

Somewhat surprisingly, we find that bad-faith laws are associated with a greater increase in loss settlement amounts when claimants are not represented by an attorney. We find this effect in all of our models. The presence of a bad-faith law may encourage insurers to offer greater amounts to claimants who then do not feel the need to engage the services of attorneys. If so, this would result in a change in the mix of cases represented by attorneys. To the extent that the tort of bad faith reduces litigation costs, it would also lead to a more efficient resolution of claims. If, however, the tort is resulting in inappropriately higher payments to insureds, it is contributing to unnecessarily high insurance costs. The economic efficiency of the tort of bad faith warrants future research.

Monday, October 15, 2007

If a husband's MySpace page says he's single and looking, you might be able to impeach his credibility. And the article has lots more examples -- e.g., an eyewitness ID of a suspect from a group photo; a heavy sentence for someone who posted a picture of herself drinking wine even after her drunk-driving vehicular manslaughter.

Oh, and if you're the sort of person who beats up people recreationally, don't post the video on MySpace.

Friday, October 12, 2007

A few weeks ago, I wrote a post about the federal Fugitive Safe Surrender program and the work of June Price Tangney, a psychologist who had been interviewed in a radio story about the program. Psychological research has a bearing on crime and punishment.

I was curious about Tangney's work, so I checked out her book: June Price Tangney & Ronda L. Dearing, Shame and Guilt(2002). It's really interesting -- and it's written to be accessible to non-specialists. Tangney and her associates have studied shame and guilt in a variety of populations (children, adolescents, college students, adults), looking at correlations with behaviors and with other psychological measures.

In everyday speech, a lot of people use "shame" and "guilt" interchangeably, but the authors (and other pscyhologists) differentiate between the two. Guilt has to do with feeling bad about SOMETHING you DID. Shame is feeling bad about YOURSELF. Guilt (when it's not accompanied by shame) turns out to be adaptive: you realize you did something bad and you can then make amends or figure out a way to do better in the future. Shame is different: you feel so horrible that you can't think constructively and you often withdraw, do self-destructive things, or lash out at others.

One of the more intriguing studies described in the book looked at a group of 5th graders, their parents, and their grandparents -- and then studied them all again in 10 years, when the kids were 17 and 18.

[S]hame-proneness assessed in the fifth grade predicted later high school suspension, drug use of various kinds (amphetamines, depressants, hallucinogens, heroin), and suicide attempts. Relative to their less shame-prone peers, shame-prone children were less likely to apply to college or engage in community service.

In contrast, relative to less guilt-prone children, guilt-prone fifth graders were more likely to later apply to college and do community service. They were less likely to make suicide attempts, to use heroin and to drive under the influence of alcohol or drugs, and they began drinking at a later age. Guilt-prone fifth graders were less likely to be arrested, convicted, and incarcerated. In adolescence they had fewer sexual partners and were more likely to practice "safe sex" and use birth control.

These links . . . remained robust, even when we controlled for family income and mothers' education. . . . Moreover, these findings held even when controlling for children's anger [in fifth grade].

Id. at 135. The authors devote four pages at the end of the book to implications of their research for the criminal justice system. They support restorative justice programs (using "active participation by the victim, the offender, and the community with the aim of repairing the community," id. at 192). They point to innovative programs of "cognitive-behavioral interventions" with inmates to encourage "appropriate experiences of guilt" and "constructive motivations to repair or make amends" and cut down the maladaptive shame (id.).

The authors strongly disapprove "shaming" sentences -- e.g., the sentences that require the offender to walk through town with a sign saying what he or she did. Id. at 193. And given their findings about shame leading to negative behaviors, their disapproval makes a lot of sense.

In a final note, the authors point out that "[a]pects of the incarceration experience itself may provoke feelings of shame and humiliation . . . . [P]articularly when punishment is perceived as unjust, such feelings of shame can lead to defiance and, paradoxically, an increase in criminal behavior. . . . A thoughtful examination of the prison environment and policies could substantially reduce the shaming, humiliating potential of life behind bars, shifting the emphasis toward values of responsibility and community." Id.

Wednesday, October 10, 2007

"Rebellious Lawyering Conference is an annual, student-run conference that brings together practitioners, law students, and community activists / advocates from around the country to discuss innovative, progressive approaches to law and social change."

Friday, October 5, 2007

The Department of Labor and Industries has fined the University of Washington $2,100 for failing to follow its own workplace safety rules. State fines UW in murder-suicide case, Seattle Times, Oct. 5, 2007.

After a murder-suicide at the UW medical center in 2000, the university took steps to make the campus safer. It created a workplace violence-prevention assessment team, hired a coordinator, published an early-warning checklist for supervisors and made it easier for them to report workplace threats directly to the university's Human Resources department and on online to the UW's Environmental Health & Safety Department.

But in the Griego case, managers at the College of Architecture and Urban Planning either didn't know the procedures or failed to enforce them properly, according to the report.

Have you been reluctant to incorporate technology into your courtroom presentations? This month's Bar Bulletin has some helpful tips for getting started: Christian R. Hazelmann, Overcoming Techno-Phobia in the Courtroom, Bar Bull., Oct. 2007.

One of the best lines:

Another good tip is to start small — a Magic Marker and a white board in the hands of a skilled attorney can work wonders.

Not only does this make sense based on presentations I've witnessed, but Mr. Hazelmann also mentions a study that supports it:

In a recent research study, three separate groups were tested on the same set of facts presented by different methods — orally, on hard boards for some of the key points, and utilizing the latest in graphics technology with computerized presentation and delivery. The marked difference was between the first and second groups. It didn’t matter nearly as much how the visual materials were presented, simply that there were materials presented in a more engaging and visually stimulating manner.

A little tangent... In making the point that people are used to having lots of visual stimulation, the author comments

When the now-familiar CNN news format was first introduced, it received terrible reviews. Viewers said the screen was much too busy, horribly cluttered and swore it would fail dismally since there was simply too much information to take in. Fast forward to today’s teenagers who will sit at their computers conducting multiple IM dialogues, listening to music, texting messages on their cell phones, all while “studying” their history books for homework. Since we can’t get away from technology, we might as well embrace it, adopt it and use it to our advantage.

That rang a bell for me. I remembered a study where a professor showed students CNN with and without the "crawl" (the headlines scrolling across the bottom of the screen). The students who had the crawl remembered 10% fewer facts than those who watched without it. Well, speaking of memory, I found that it was hard to find the article even though I was pretty sure of the general point. One reason: I "remembered" that the study was by a psychology professor and it was really by two journalism professors. Oh, well. Anyway, here's the article: Noah Shachtman, "The Crawl" Makes You Stupid, N.Y. Times Magazine, Dec. 11, 2005. One lesson: even though jurors (like everyone else today) may be used to lots of visual clutter, that doesn't mean that visual clutter is the best way to communicate with them. Sure, use technology, but more is not necessarily better. As Mr. Hazelmann, a Magic Marker (or a generic felt pen) can work wonders.

Sentencing law has been in flux in recent years. Professors Douglas Berman (Ohio State) and Steven L. Chanenson (Villanova) recommend "robust state sentencing commissions":

Soon after the Supreme Court in Blakely v. Washington declared certain judicial fact-finding within a state sentencing guideline system unconstitutional, Justice O’Connor described the Court’s decision as a “Number 10 earthquake.” But two years after the Blakely ruling, the case’s broader impact and meaning for state criminal justice systems around the country has been largely overshadowed by developments in the federal sentencing system. Nevertheless, this is an exciting time for state sentencing. By granting review in yet another state sentencing case, California v. Cunningham, this past spring, the Supreme Court brings state issues to the national stage once more.

State courts handle many more criminal cases than the federal courts. State sentencing procedures touch the lives of many more defendants, victims and witnesses than the federal sentencing system. Yet, these realities often get lost in all the attention paid to the federal sentencing system in the era of the United States Sentencing Guidelines, perhaps because the federal system is in everyone’s backyard whether that backyard is in Manhattan or Montana. Especially in the academic world, there is seemingly endless interest in federal sentencing law and practices, but precious little discussion of state sentencing reforms generally or of developments in particular states.

The direct and indirect impact of Apprendi and especially Blakely in the states is a rich and dynamic story, with many facets and lessons that should not be overlooked. The doctrinal uncertainty and confusion produced by Blakely and Booker makes it dangerously easy for jurisdictions to be concerned primarily with technical problems in particular sentencing laws rather than with broader reform issues. But the Supreme Court’s coming work in Cunningham, like Blakely before it, should motivate state legislatures, courts, and sentencing commissions to reexamine and improve their sentencing systems.

In this Commentary – which serves as the introduction to a broader symposium on state sentencing after Blakely – we argue in favor of robust state sentencing commissions as part of that reexamination and improvement. Creating and empowering a sentencing commission closes few, if any, substantive options for state sentencing systems. The resulting sentences urged by a sentencing commission can be comparatively high and tightly controlled by a central authority. In contrast, sentences can also be set relatively low and sentencing decisions can be left comparatively unencumbered by binding guidance. A pro-commission view is a process-oriented recommendation with few, if any, inherent substantive sentencing consequences. It does, however, encourage much-needed rationality and transparency in sentencing.

Douglas A. Berman and Steven L. Chanenson, The Real (Sentencing) World: State Sentencing in the Post-Blakely Era (November 2006). Villanova University Legal Working Paper Series. Villanova University School of Law Working Paper Series. Working Paper 69, 4 Ohio St. J. Crim. L. 27 (2006).

There's a longstanding maxim that an expert shouldn't invade the province of the jury in assessing credibility.

But does the maxim always make sense?

What if there are circumstances that ordinary jurors don't have much experience with, such as a witness with a psychological condition leading to self-aggrandizing exaggerations? What about victims of rape or other events who show a wooden affect because of their trauma? What about child witnesses?

Prof. Anne Poulin (Villanova) suggests that the courts should more often permit experts to assist juries in their task of assessing credibility.

This article explores the ways in which experts can assist the jury to assess the credibility of other witnesses and suggests analytical approaches to such expert testimony. The article argues that the courts should be more receptive to expert testimony bearing on witness credibility and engage in a more nuanced consideration of the role played by proffered expert testimony and how the role of the evidence affects its admissibility. Doing so should lead the courts to embrace the promise of the modern rules of evidence and permit experts to assist juries as they assess credibility.